The judiciary is a central pillar of governance in a democratic nation like Kenya. The role of the judiciary however goes beyond interpreting laws and delivering justice. The courts have an integral role in promoting a country’s social and economic development.
As stated in its official website www.judiciary.go.ke, our judiciary “fosters social and political stability, and promotes national socio-economic development through its processes and decisions.” Kenya’s judiciary is therefore alive to its broader mandate of contributing to the country’s socio-economic development and political stability.
Upholding the rule of law and ensuring access to justice are not abstract concepts but ought to be viewed as components of the judiciary’s broader role in social progress. This implies that courts are not expected to play a bystander role, for instance, in the fight against poverty and inequality in society. Various legal scholars and respected judicial voices have reiterated that courts should adopt a dynamic as opposed to rigid approach in dealing with important social issues.
The judiciary as a vital institution of governance cannot therefore afford an insular approach to matters touching on society’s development.
Justice Albie Sachs of the Constitutional Court of South Africa cautions that judges should not “be unduly formalistic showing a passive and uncaring attitude to the real lives of actual people.” This is not to say that independence of the judiciary does not matter.
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Chief Justice David Maraga, in a speech marking his first 100 days in office, spoke of a service-oriented Judiciary that is “sensitive to the social impact of its decisions and not one that is stone deaf to its societal context.”
The Big Four Agenda is anchored in Article 43 of Kenya’s Constitution, which expressly entrenches social and economic rights as part of the Bill of Rights. Article 43 speaks of the right to “the highest attainable standard of health” and “accessible and affordable housing.” Article 43 also provides for the right to “be free from hunger, and to have adequate food of acceptable quality.”
These are all part of three pillars of food security, affordable housing and universal healthcare, which form part of the Big Four. Article 21 of the Constitution requires the State to put in place the appropriate legislative and policy structures for the progressive realization of social and economic rights. Our Constitution therefore provides a legal roadmap for formulation and implementation of policies geared to the progressive realization of the social and economic rights and by extension the Big Four. The point is that the Big Four has constitutional underpinnings.
Our courts should view this transformative vision as integral to the realisation of social and economic rights of all Kenyans as envisaged by our Constitution. While the Executive is mandated by the Constitution to develop and enforce the policy and institutional structure for the realisation of social and economic rights of Kenyans, the Judiciary should not be seen as an impediment to such efforts by engaging in rigid interpretation of the laws. Kingori Choto, lawyer and public affairs specialist
Corruption dragon must be slayed now
It is undeniable fact that corruption is a deep-seated problem in this country. In fact, the corruption dragon continue to haunt this country every day. Of late, several cases of corrupt deals like clearance of contraband goods has been hitting the headlines. It is regrettable that the Transparency International continues to rank Kenya among the most corrupt countries in Africa every year.
While I commend the Jubilee administration for its concerted efforts to prosecute senior government officials implicated in corruption, the reality of the matter is that the entire exercise may end up being a public relations gimmick.
Sadly, only a few senior government officials have been taken to court. Admittedly, since it took power in 2013, the Jubilee administration has been characterised by money-wasting scandals, incessant borrowing and overspending. In fact, austerity measures have gone to the dogs while proclivity to spend taxpayers' money and grave train have become the norm. Worse, our Parliament, which is supposed to protect the interests of Wanjiku, is now benefiting from the greed.
The latest bribery allegations in Parliament Building is a good case in point. The rampancy of corruption is a great impediment to the Big Four agenda. Unless the dragon of corruption is slayed ruthlessly, sustainable economic growth and development will remain a dream. This is not the time to preach water and take wine. It is time for the government to walk the talk lest we are all exterminated by this dragon of graft.
